[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ DECEMBER 21, 2009
THOMAS K. KAHN
No. 08-10702 CLERK
________________________
D.C. Docket No. 07-00448-CR-2-LSC-HGD
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
GARY L. WHITE,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(December 21, 2009)
Before DUBINA, Chief Judge, BIRCH and SILER,* Circuit Judges.
SILER, Circuit Judge:
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
INTRODUCTION
In 2008, Gary L. White was convicted in the Middle District of Alabama for
accepting bribes while he was County Commissioner of Jefferson County, in
violation of 18 U.S.C. § 666(a) and (b). Five days later, he moved to vacate the
judgment on the ground that venue was improper. The district court vacated his
judgment and ordered a new trial. On appeal, the government raises one issue:
whether the district court erred in its order. We agree with the government and
reverse and remand with instructions for the district court to reinstate the
conviction and proceed to sentencing.
I.
White was indicted for accepting bribes from sewer companies that had
ongoing and prospective contracts with Jefferson County. Before trial, the district
court held a hearing regarding, inter alia, White’s conditions of bond. At the
hearing, White objected to a press release issued by the government, which he
challenged as being both highly prejudicial and factually incorrect. White’s
counsel and the court discussed the adverse newspaper publicity stemming from
the indictment, and the effect it would have on the venire. White’s counsel
suggested possible remedies, including “a sequestered trial” or “a change of
venue.” He stated that, “[w]hat I’m asking is—we’re not asking for that yet—but
2
I’m asking the Court to keep an open mind about the possibility of either a change
of venue or some change in how we select the jury.” The court responded, “Put
that in a formal motion.”
White filed a motion for a change of division on November 20, 2007. He
asked the court to move the trial from the Southern Division of the Northern
District of Alabama to the Western Division of the same district. He argued that
potential jurors in the Southern Division had an actual or perceived financial
interest in the case,1 and that pervasive pre-trial publicity would prevent a fair trial
in that division. White cited to one editorial’s discussion of moving the trial in his
conclusion: “The News notes that an appropriate remedy for such publicity is a
change of venue. The defendant herein seeks less than that. He seeks a change in
division.” In an accompanying footnote, he elaborated: “A change of venue from
one district to another, which is more than the defendant seeks, is left to the sound
discretion of the trial court.”
During a teleconference regarding the motion, neither party presented
additional evidence. Instead of transferring the case to the Western Division, the
court, sua sponte, moved the case to the Middle District of Alabama in
1
White argued that an unbiased jury could not be seated in the Southern Division,
because the venire consisted mainly of Jefferson County residents, who would likely blame their
increased sewer rate on him.
3
Montgomery. The court supported its decision by stating that moving the trial to
Tuscaloosa, in the Western Division (as requested by White), would be
inadequate, due to its close proximity to Jefferson County, the source of the
adverse pre-trial publicity. Neither party objected, and the court entered an order
to that effect.
Consequently, White was tried and convicted in the Middle District of
Alabama.2 He did not raise the venue issue until after his conviction, in his motion
to vacate the judgment, in which he referenced his right to be tried within the
district where the crime was alleged to have been committed. Despite White’s
failure to object, the court granted his motion but noted that “[White] waived his
right to object to the change of district by having failed to timely assert it. If this
Court has erred, [he] invited it by affirmatively representing that the court had the
discretion to transfer venue to another district.” Despite finding a waiver, the
court concluded that “the ends of justice would best be served by granting the
motion to vacate,” which it did “[w]ith considerable reluctance.” It then ordered
the case to be re-tried in the Western Division of the Northern District of Alabama
2
After transferring venue, the same judge presided over White’s trial in the Middle
District of Alabama. White was adjudged guilty of counts one through nine of the twelve-count
indictment. The district court granted his motion for judgment of acquittal as to counts ten and
eleven.
4
and re-assigned to another district judge. The government then filed this
interlocutory appeal.
II.
We review the district court’s grant of a new trial in a criminal case for
abuse of discretion. United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir.
1985).
III.
White sought vacation of the verdict solely on the grounds that his venue
right had been violated, a right the district court explicitly found that he had
impliedly waived. Nevertheless, it vacated his conviction in the interests of justice
based on its belief that venue was jurisdictional.
The Sixth Amendment guarantees the right to be tried in the district in
which the offense was committed. U.S. Const. amend VI (expanding on the
guarantee in U.S. Const. art. II, § 2, cl. 3, which provides that criminal trials be
held in the state where the alleged crime took place). The Federal Rules of
Criminal Procedure preserve this substantial constitutional right, by providing that
“(e)xcept as otherwise permitted by statute or by these rules, the prosecution shall
be had in a district in which the offense was committed.” Fed. R. Crim. P. 18.
“[Rule] 21(a) conditions a change of venue upon the defendant’s request therefor.
5
Absent the request, a change of venue may not be ordered.” United States v.
DiJames, 731 F.2d 758, 761 (11th Cir. 1984) (internal quotation and citation
omitted). “A defendant therefore cannot be forced to accept a change of venue
against his will.” Id. (internal quotation and citation omitted). The district court
may not, sua sponte, change venue, “even if it sincerely believes that such action
would be for the defendant’s own good.” United States v. Stratton, 649 F.2d
1066, 1077 (5th Cir. 1981).3 “[I]nterests of judicial convenience and economy”
also do not outweigh this right, for there is “no judicial economy exception
between the lines of the Sixth Amendment.” Id.
Like most rights, a defendant’s venue right is not absolute, and it will be
deemed waived unless asserted prior to trial. United States v. Dabbs, 134 F.2d
1071, 1078 (11th Cir. 1998). See also DiJames, 731 F.2d at 760-763 (“[T]he right
to be tried in the state and district where the crime was alleged to have been
committed may be waived voluntarily by the defendant.”). “The essential factors
in determining whether a defendant has waived his constitutional venue right are
knowledge of the right, the free exercise of an uncoerced will, and conduct or
action known to the accused which evidences an intent to waive.” Stratton, 649
3
“Decisions of the former Fifth Circuit rendered prior to Oct. 1, 1981, are binding upon
this court unless and until they are overruled by the Eleventh Circuit sitting en banc.” DiJames,
731 F.2d at 762 (citation omitted).
6
F.2d at 1077 (internal quotations and citation omitted). “[I]n many (and perhaps
most) cases in which the defendant fails to object to a defect in venue, the
defendant’s silence may be taken to imply a waiver of the venue right.” Id. at
1078. However, “in cases . . . in which there is evidence which suggests that the
defendant has not waived his venue right, the failure to raise an explicit venue
objection cannot imply a waiver.” Id. at 1078 n.17.
This case falls among the majority of cases in which a defendant’s silence
implies a waiver of the venue right. White argues that his counsel was “oblivious”
to the existence of Rule 21 and maintains that neither he nor his counsel had
“awareness of the venue rules” as evidence that he did not waive his venue right.
These assertions mistake the issue. This issue is not whether White was aware of
Rule 21, but whether he knowingly and voluntary waived his constitutional right
to be tried in the district in which his offense occurred. There is simply no
evidence White or his lawyer was unaware of his constitutional right. Not only
did he acknowledge his right to be tried in the district in which the offense was
committed in his motion for a change of division by citing directly to Rule 18, but
he also failed to object when the court transferred the case to another district. He
also did not object before or during the trial. Instead, he waited until after he was
convicted to complain that the district court had transferred the case, sua sponte.
7
Because there is no evidence he was unaware of his right, we construe his silence
as an implied waiver.
White’s case, then, is distinguishable from Stratton, 649 F.2d at 1076-1079.
In Stratton, multiple state officials were convicted under the Racketeer Influenced
and Corrupt Organizations Act. Before trial, the district court granted the motions
of several defendants to transfer venue to another district due to pre-trial publicity.
Two other defendants, Harrell and Stratton, contested this decision on appeal. The
former Fifth Circuit held that neither defendant had knowingly and voluntarily
waived his right. The court easily found that Harrell had not waived his right,
because he had expressly refused to adopt his co-defendant’s motions to transfer
and had “made his position even clearer by [later] moving for a severance.” Id. at
1077. Stratton’s purported waiver presented a closer question, because his
counsel had told the district court “he stood ‘neutral [on the motions],’ since he
knew ‘of no grounds to object to [them].’” Id. In other words, Stratton’s attorney
appeared unaware that his client had a constitutional right to venue at all. The
court concluded that “[t]he neutral stance taken by Stratton’s attorney at the venue
hearing . . . . [c]oupled with the comments evidencing [his] ignorance of the venue
right” did not constitute a waiver. Id. at 1078. In the instant case, White did not
object until after his conviction, in contrast to Harrell, and there is no evidence
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that White’s counsel was ignorant of the venue right, in contrast to Stratton’s
attorney. In fact, the record demonstrates that White specifically referenced his
right to be tried in the district in which the offense was committed by citing
directly to Rule 18.
Since we agree with the district court that White waived his venue right, we
must next determine whether the district court abused its discretion by vacating his
conviction and ordering a new trial. “[W]e may reverse only if we find that the
district court has made a clear error of judgment, or has applied the wrong legal
standard.” Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc) (citation
omitted) (reviewing the district court’s admission of expert testimony). “Although
we actually review a court’s denial of a motion for a new trial for abuse of
discretion, we more closely scrutinize a court’s grant of a new trial.” United
States v. Cox, 995 F.2d 1041, 1044 (11th Cir. 1993). In Martinez, for example, we
held that the district court abused its discretion in ordering a new trial based on its
erroneous conclusion that the verdict was contrary to the weight of the evidence.
Id. at 1313. Thus, “[w]hile the district court’s discretion is quite broad, there are
limits to it.” Id.
Here, the district court held that the interests of justice required vacation,
basing its decision on the erroneous legal conclusion that venue cannot be waived.
9
Due to this error, we must reverse.4 See, e.g., Mitchell v. Maurer, 293 U.S. 237,
244, 55 S. Ct. 162, 165, 79 L. Ed. 338 (2004) (“Unlike an objection to venue, lack
of federal jurisdiction cannot be waived or be overcome by an agreement of the
parties.” (emphasis added)); DiJames, 731 F.2d at 760-763 (“[T]he right to be tried
in the state and district where the crime was alleged to have been committed may
be waived voluntarily by the defendant . . . .”).
REVERSED and REMANDED for sentencing.
4
Because White voluntarily waived his venue right, we need not reach the merits of the
government’s alternative invited-error argument.
10